On February 7, this year, Justice Stephen Breyer gave the Schwartz Lecture at the University of Chicago Law School titled: “Judicial Activism: Power Without Responsibility?” Basically, the point of his lecture was to argue that his kind of jurisprudence is less subjective than the “originalist” jurisprudence of Scalia or Thomas. But there was another point to his lecture and that was to blunt the charges of activism that is made by conservatives against liberal judges. He called the phrase “judicial activism” “a kind of pejorative cliché.” He argued that the activism we have seen in the past is not relevant to today, and to make his point, Breyer gave four examples of past activism that he said are no longer an issue.

The first example would be “a judge who interprets statutes to further his or her own vision of social justice even where that vision does not reflect Congress’s intent.”

The third example “Reflects a judicial decision that represents a radical departure from prior legal understandings. Example: Brown v. Board. They changed what was before.” He also cited the Supreme Court applying the Bill of Rights to the States as a radical departure. Breyer said that this example is done so frequently that it is hard to criticize the Court.

And finally, judicial activism is reflected in an “Over readiness to strike down statutes as unconstitutional…Too much substitution of the views of an unelected judge for the view of an elected legislature.” Here Breyer was referring to striking down statutes enacted by our Federal Congress.

Rejecting these past-activist examples as pretty much irrelevant, Breyer asked, “How do we interpret the law sensibly but not subjectively? That is what the current debate is all about…We’re not supposed to be subjective. Most judges accept that…” So: “How do you prevent a judge from substituting his own background, beliefs, etc., for the law?...I…emphasize purpose and consequence.” Breyer went on to try to show that by emphasizing “purpose and consequence,” a judge can be more objective than by emphasizing the originalist approach: history, text, tradition, and so on. The object of my article is not to analyze these two approaches, but to concentrate on his analysis of “past” activism, and why he argues that it’s irrelevant.

There is an attack from the right on “activist” judges and Justices that has become quite effective. The charge that left-leaning judges, which includes Justice Breyer, too often “legislate from the bench,” and seek outcomes that they like rather than what the people through their legislatures have mandated through statutes, has become an effective criticism of liberal courts. By designating activism as irrelevant today, Breyer is seeking to blunt this criticism. If the four traditional kinds of activism are no longer an issue today, then charges of activism are hollow. Let’s examine his analysis.

The first example, judges who substitute their own vision of society for that of elected officials, is alive and well, as we can see, for example, in cases dealing with affirmative action. Congress wrote the Equal Protection Clause of the 14 th Amendment, to prevent race-based discrimination. Period. Affirmative action discriminates against a majority, a view approved of by O’Connor and other Justices including Breyer, even though that wasn’t Congress’s intent. And Justice Kennedy’s personal view of fairness was offended by the Texas legislature’s law against homosexual sodomy, so he, with Breyer’s help, struck it down. The charge that Justices are willing to substitute their own vision of society for that of elected officials is, indeed relevant.

The second example of “judicial engagement of non-judicial activities,” is also alive and well. When the Court in Roe v. Wade made the law of the land that abortions must be allowed in the first trimester, they were making law, a very non-judicial activity. When the Massachusetts Supreme Court recently ordered the Massachusetts legislature to write a new law dealing with gay marriages, it was engaging in non-judicial activities. Under the Federal and the Massachusetts Constitutions, courts are not given the power to “order” legislatures to write laws.

As Breyer pointed out, in example number three, radical departures of what came before is done so frequently, we can say it is truly alive and well.

The fourth example is entirely different. In Kathleen Sullivan’s New York Times Book Review of Breyer’s new book: Active Liberty, she notes that Breyer doesn’t approve of striking down Congressional statutes because “the public has participated in the legislative process at the national level.” But by allowing Congress to write any law under the guise of the Commerce Clause or the General Welfare Clause, Breyer denies the democratic participation (or “active liberty”) at the local level which the Constitution mandates. So when the Rehnquist Court started striking down Federal statutes, liberals started using the word “activist” to describe what is really a Constitutional protection of the 10 th Amendment. Breyer’s fourth example is a Constitutional, not an activist example of jurisprudence.

The problem with Justice Breyer’s analysis is that the kinds of activism Breyer calls irrelevant are still very much a problem. The debate today is still: do we want activist, result-oriented judges, or do we want objective judges who apply the law? I’m afraid Breyer has failed in his attempt to change the debate.

Two weeks ago, in response to my column about A Living Constitution, a Mr. Randy Weir from Hawaii forwarded me a link to the 12/12/05 interview with President Bush by Brian Williams. President Bush talked about the “…constitution which the Iraqis approved and…will improve upon. And, you know, we improved on our own Constitution. In other words, it’s a living document.” Yeah, right! Just what we Constitutional Conservatives want to hear from the president who is supposedly a supporter of originalist jurisprudence! And Mr. Weir raises the question: why didn’t the conservative media (Fox News, etc.) pick up on this?

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at
rssjr@citcom.net.